Alice L. Talmage v. Steven R. Talmage

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 14, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP2180 Cir. Ct. No. 2019CV97

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ALICE L. TALMAGE, INDIVIDUALLY AND AS TRUSTEE OF THE
TALMAGE JOINT REVOCABLE TRUST DATED NOVEMBER 29, 2006,

PLAINTIFF-APPELLANT,

V.

STEVEN R. TALMAGE AND DIANNE L. TALMAGE,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment and an order of the circuit court for
St. Croix County: R. MICHAEL WATERMAN, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP2180

¶1 PER CURIAM. Alice L. Talmage gifted real property she owned in
trust to two of her children, Steven R. Talmage and Dianne L. Talmage, via a
trustee’s deed.1 Alice later contested this transfer. Following a two-day bench
trial, the circuit court concluded that the trustee’s deed was valid. It also
determined, however, that Steven breached his duty as Alice’s attorney-in-fact and
that Steven and Dianne converted some of Alice’s funds without her permission.
The court, therefore, entered a money judgment in Alice’s favor against Steven
and Dianne. Alice then moved for reconsideration on the basis that the trustee’s
deed failed to comply with the trust requirements, but the court denied the motion.

¶2 Alice appeals from the circuit court’s judgment and from the court’s
order denying her motion for reconsideration. On appeal, Alice argues that the
trustee’s deed violated the terms of the trust, that the property transfer was
procured as a result of undue influence, that Alice was not competent to execute
the trustee’s deed, and that the circuit court erred by failing to include additional
amounts in the money judgment. For the reasons that follow, we affirm the circuit
court’s decisions.

BACKGROUND

¶3 Alice was married to Robert Talmage, and they had three
children: Steven, Dianne, and John Talmage. Alice and Robert owned real
property in New Richmond, Wisconsin, which consisted of a farmhouse, a log
home, and approximately 120 acres (all of which we hereafter refer to as the
Farm), with an estimated total value of one million dollars. According to the

1
For ease of reading, we will refer to the parties in this appeal with the same last name
by their first names.

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record, the Farm had been in Alice’s family since 1912, Alice was born in the
farmhouse, and Alice and Robert intended that the Farm remain in the Talmage
family. In the 1970s, Alice and Robert added the log home to the property, which
then became their primary residence. Robert died in 2007, but Alice remained
living at the Farm until she moved to Montana in July 2018.

¶4 In 2006, Attorney Jennifer O’Neill prepared an extensive estate plan
for Alice and Robert, consisting of two wills, powers of attorney, a marital
property agreement, the Talmage Joint Revocable Trust (the trust), and a
quit-claim deed to transfer the Farm to the trust. According to the terms of the
trust, after Robert’s death, the trust estate was to be divided into the “family trust”
and the “survivor’s trust.” The survivor’s trust would contain Alice’s individual
property, Alice’s interest in any marital property that she and Robert owned, and
the smallest fractional share of the remaining trust estate that would eliminate any
tax upon Robert’s death. The family trust, in contrast, would contain “the balance
of the trust estate.”

¶5 Under the survivor’s trust, Alice was authorized to gift trust assets
pursuant to Article IV.B. of the trust. That article provides:

The surviving spouse or his or her agent may withdraw all
or any portion of the survivor’s trust in order to enable the
surviving spouse to make gifts qualifying for the annual
federal gift tax exclusion in effect from time to time or for
any other reason. Withdrawals shall be made by a writing
signed by the surviving spouse or his or her agent that
specifically refers to this paragraph and that is delivered to
the trustee during the surviving spouse’s lifetime, either in
person or by registered or certified mail. This writing may
either direct the trustee to distribute the withdrawn property
to the surviving spouse or to his or her agent or, for
convenience, direct the trustee, acting as the agent for the
surviving spouse, to distribute the withdrawn property
directly to one or more persons identified in the writing. If
all or a major portion of the survivor’s trust is withdrawn,
the trustee may retain sufficient assets to secure payment of
liabilities lawfully incurred by the trustee in the

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administration of the survivor’s trust, including the
trustee’s fees that have been earned, unless the trustee is
indemnified to the trustee’s satisfaction against loss or
expense.

Thus, Article IV.B. required that any withdrawals be made in writing and refer to
Article IV.B.

¶6 Upon Alice’s death, any remaining survivor’s trust assets were to be
added to the family trust’s assets. The terms of the family trust then provided that
upon Alice’s death, the family trust would be divided in equal shares to Steven
and Dianne. Therefore, the terms of the family trust provided that the Farm would
transfer to Steven and Dianne should they survive Alice and Robert. The family
trust specifically excluded John from receiving a distribution, explaining that
“[t]his exclusion is intentional and not the result of oversight” as Alice and Robert
believed that John “has received a substantially equal share during his lifetime.”

¶7 Under the terms of Alice’s power of attorney, Robert was appointed
as her attorney-in-fact, Steven was appointed as first alternate, and Dianne was
second alternate. Thus, when Robert died in 2007, Steven became Alice’s
attorney-in-fact, and he held that position until November 6, 2018, when Alice
appointed John as her attorney-in-fact.

¶8 In 2012, Attorney O’Neill again met with Alice, Steven, and Dianne
to update Alice’s estate plan. After the meeting, O’Neill drafted several
documents: (1) a durable power of attorney for property and finances, which
would have made Steven and Dianne co-agents; (2) two personal care agreements,
which would have allowed Steven and Dianne to be paid as caretakers of Alice;
and (3) a trustee’s deed transferring the Farm from the trust to Steven and Dianne.
O’Neill testified that she specializes in “medical divestment,” which involves

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individuals divesting themselves of “assets so that they can avail themselves later
in life … of medical assistance benefits for provision of nursing care.” According
to O’Neill, when she drafted these documents, “there was no doubt in [her] mind
that Alice … was considering medical assistance planning.” However, none of
these documents were ever executed.2

¶9 According to Alice’s medical records, Alice began experiencing
more frequent health problems in approximately 2014 to 2015. As a result, in
June 2015, Dianne contacted Attorney Joseph Earley. At trial, Dianne testified
that she did so because Alice told her that she “wanted to get [the Farm] out of her
name because she didn’t think she was gonna be around much longer or that she
would be at home much longer” and that Alice wanted “[t]o transfer the property
to me and Steve so that the [F]arm would be protected from future healthcare
costs.” Dianne’s first contact with Earley’s office stated that she wanted him to
“review the estate planning documents that have already been done for my parents
and make recommendations for finalizing a plan.”

¶10 According to Earley, he met with Steven and Dianne on July 10,
2015, “to talk in general about Medicaid planning and specifically about their
mom’s situation.”3 He testified at trial that he was told Alice was not present at
that meeting due to “health concerns [and] mobility issues,” which Dianne

2
O’Neill testified that after she sent the documents to Alice, her receptionist called Alice
to schedule an appointment to sign the documents. According to O’Neill’s records, “Dianne
called the office back and said that Alice wasn’t sure why we were calling and to please contact
Dianne in the future.” Dianne testified that Alice “had received at least two calls” from O’Neill’s
office, and Alice told Dianne to “make them stop calling me.” Dianne explained that Alice
“didn’t like the meeting, she didn’t like the proposal, she didn’t want to follow through with it.”
3
The circuit court found that “[a]t that time, Steven was still Alice’s attorney-in-fact and
was authorized to retain attorneys on Alice’s behalf.”

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corroborated during her testimony. As a result of that meeting, Earley drafted a
trustee’s deed to transfer the Farm to Steven and Dianne, which Earley sent to
Dianne by e-mail on August 5, 2015.

¶11 On August 8, 2015, Alice fell in her home and was admitted to the
hospital. She was hospitalized from August 8-17, 2015. During some of her
hospitalization, Alice’s medical records show that she was suffering from an
“[a]ltered mental status” and confusion. By August 11, 2015, however, Alice’s
records state that she was “alert and oriented,” and when she was released from
the hospital on August 17, 2015, she was “less than 20% impaired, limited or
restricted.” On August 24, 2015, Steven accompanied Alice to a follow-up
appointment with her doctor. The notes from that visit state that Alice was “[a]lert
and oriented” and that she was “[c]ooperative” with “[n]ormal judgement.”

¶12 That same day—August 24, 2015—Steven took Alice to meet with
Earley at his office, Dianne met them there, and Alice signed the trustee’s deed.
Steven took a photograph of Alice and Earley after she signed the trustee’s deed,
which showed Alice in the car with Earley standing next to her holding the
trustee’s deed. The trustee’s deed transferred the Farm to Steven and Dianne, each
as tenants in common, but the deed did not reference Article IV.B. of the trust.
The deed was recorded on September 14, 2015.

¶13 After transferring the property to Steven and Dianne, Alice resided
in the log home on the Farm until July 2018, when she moved to Montana to live
with John. This move was intended to be temporary, as the log home was to
undergo much-needed repairs and updates while Alice was absent. Steven and
Dianne testified that Alice had authorized $20,000 of her funds for these updates,
but Alice claimed that she only authorized up to $7,000 to repair the floor, fix

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water damage, and replace the carpet in the log home. Alice alleged that Steven
and Dianne used additional funds and engaged in other acts of financial
self-dealing, which John discovered after reviewing Alice’s bank records. After
Alice discovered Steven’s self-dealing as her attorney-in-fact, she revoked her
power of attorney and named John as her new attorney-in-fact on November 6,
2018.

¶14 On February 28, 2019, Alice, as both an individual and a trustee of
the trust, filed the lawsuit at issue in this case. Alice’s complaint alleged four
counts: undue influence, lack of competency, conversion, and breach of fiduciary
duty. She sought: (1) to void the trustee’s deed; (2) an order requiring that the
real estate be returned to the trust; (3) an accounting and a money judgment
against Steven and Dianne for the money she alleged they converted; and (4) costs
and attorney’s fees. On March 22, 2019, Steven and Dianne answered the
complaint. They alleged that the trustee’s deed was a gift from Alice to Steven
and Dianne and that all actions taken by them were known to or authorized by
Alice.

¶15 The circuit court held a two-day bench trial on May 3 and 4, 2021,
during which Alice, Steven, Dianne, John, Karen Ives (John’s daughter), Earley,
and O’Neill testified. At trial, Alice admitted that it was her signature on the deed,
but she testified that she had no memory of meeting Earley or signing the
document. Alice stated that she never intended to transfer the Farm out of the
trust. In general, however, Alice struggled to remember many of the things she

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was being questioned about, and at different points during the trial, the transcript
demonstrates that Alice had verbal outbursts.4

¶16 On September 16, 2021, the circuit court issued its Findings of Fact,
Conclusions of Law and Order for Judgment. The court concluded that the
trustee’s deed “constituted a completed gift of the [F]arm to Steven and Dianne”
and that Alice failed to meet her burden to prove either that she lacked
competency to sign the deed or that she signed the deed as a result of undue
influence. The court also determined, however, that Steven owed Alice a
fiduciary duty as Alice’s attorney-in-fact and that Steven breached his duty “by
gifting [money] to himself and self-dealing in Alice’s cash assets.” As a result, the
court ordered a total money judgment in the amount of $34,049.69 in favor of

4
In 2018, two of Alice’s doctors signed a Determination of Incapacitation for Alice,
which found Alice medically incapacitated such that she is “unable to receive and evaluate
information effectively or to communicate decisions to such an extent that [she] lacks the
capacity to manage [her] health care decisions.”

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Alice, finding Steven and Dianne jointly and severally responsible for $29,436.69
and Steven individually liable for $4,613.5

¶17 On October 5, 2021, Alice filed a motion for reconsideration on the
ground that the trustee’s deed did not satisfy the requirements of Article IV.B. of
the trust, and therefore it was error for the circuit court to conclude that the deed
was valid. The court denied the motion for reconsideration by order on
November 5, 2021. On December 17, 2021, Alice filed her notice of appeal from
both the September 16, 2021 judgment and the November 5, 2021 order denying
her motion for reconsideration.

5
The irregularities that the circuit court found credible were as follows: (1) “[o]n
May 11, 2016, Steven transferred $10,000 from Alice’s individual account to [an] account at First
National Community Bank (FNCB) held jointly by Steven, Dianne and Alice,” which “freed
$10,000 of Alice’s money from the terms and conditions of the financial power of attorney to
allow him and Dianne to more easily manage Alice’s finances”; (2) “[o]n September 1, 2016,
Steve wrote a $1,000 check from the FNCB joint account to himself to open an account at Bremer
Bank” in Steven’s and Dianne’s names, and “[t]he account collected Steven and Dianne’s
ongoing rental income from the [F]arm, and the account was used solely for Steven and Dianne’s
benefit”; (3) “[o]n September 14, 2016, Steven closed one of Alice’s accounts and transferred the
remaining balance of $6,557.14 to the FNCB joint account”; (4) “[o]n December 30, 2016,
Steven wrote a check from the FNCB account to pay $2,214.50 toward the 2016 property taxes
for the [F]arm,” “[o]n December 28, 2017, [Steven also] wrote a check from the FNCB account
to pay $2,398.50 toward the 2017 property taxes,” and “[t]he tax payments advanced Steven and
Dianne’s interests because they owned the [F]arm”; (5) “[o]n August 7, 2018, Steven wrote a
$20,000 check to himself for improvements to the log home” and “[h]e deposited those funds into
the Bremer Bank account,” but “Alice only authorized $7,000 of her funds”; (6) “[o]n
October 10, 2018, Steven deposited in the FNCB account a $15,436.69 insurance claim check
payable to Alice,” which “related to an insurance claim for hail damage to the [F]arm”; and
(7) “[o]n October 19, 2018, Steven wrote a $15,436.69 check to himself from the FNCB account”
and “deposited it in the Bremer Bank account.”

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DISCUSSION

I. Jurisdiction

¶18 As an initial matter, Steven and Dianne argue that Alice “has
forfeited the right to appeal the [circuit] court determinations that she had not met
her burden of showing lack of capacity and that she had not shown that the
[t]rustee’s [d]eed was the product of undue influence,” as she failed to timely
appeal from the September 16, 2021 judgment. According to Steven and Dianne,
Alice’s appeal—filed ninety-two days after the September 16 judgment—was
untimely, see WIS. STAT. § 808.04(1) (2021-22),6 and on appeal she argued
grounds that went beyond the sole issue raised in her motion for reconsideration.

¶19 In response, Alice invokes WIS. STAT. § 805.17(3), addressing trials
to the court, which provides in pertinent part:

Reconsideration motions. Upon its own motion or the
motion of a party made not later than 20 days after entry of
judgment, the court may amend its findings or conclusions
or make additional findings or conclusions and may amend
the judgment accordingly. The motion may be made with a
motion for a new trial. If the court amends the judgment,
the time for initiating an appeal commences upon entry of
the amended judgment. If the court denies a motion filed
under this subsection, the time for initiating an appeal from
the judgment commences when the court denies the motion
on the record or when an order denying the motion is
entered, whichever occurs first.

According to Alice, the motion for reconsideration tolled the time for appeal from
the September 16, 2021 judgment, and her notice of appeal was timely filed on
December 17, 2021. Steven and Dianne disagree, arguing that under § 805.17(3),

6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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“the time for initiating an appeal is tolled only as to the issues that were raised in
the motion for reconsideration.”

¶20 We first note that the issue of whether Alice’s notice of appeal was
timely filed does not involve the question of forfeiture, as Steven and Dianne
suggest. The issue is whether Alice’s notice of appeal was effective to give this
court jurisdiction over the judgment and the order in this case. See WIS. STAT.
RULE 809.10(1)(e) (court of appeals lacks jurisdiction when an appeal is untimely
filed).

¶21 Second, we agree with Alice that under WIS. STAT. § 805.17(3) and
the circumstances of this case, her “motion for reconsideration operated to change
the time limits governing” Alice’s appeal. See Salzman v. DNR, 168 Wis. 2d 523,
526-27, 484 N.W.2d 337 (Ct. App. 1992). Again, the operative dates in this case
are as follows. The circuit court entered its final judgment on September 16,
2021. Alice filed her motion for reconsideration on October 5, 2021, and the court
denied her motion on November 5, 2021. On November 23, 2021, Steven and
Dianne filed a notice of entry of the court’s September 16 judgment and
November 5 order. On December 17, 2021, Alice filed her notice of appeal.

¶22 The trial in this case was a trial to the circuit court, so WIS. STAT.
§ 805.17(3) is clearly applicable under the circumstances. See Continental Cas.
Co. v. Milwaukee Metro. Sewerage Dist., 175 Wis. 2d 527, 533, 499 N.W.2d 282
(Ct. App. 1993). Further, there is no argument that Alice’s motion for
reconsideration was not timely filed after the September 16, 2021 judgment. See
§ 805.17(3) (“Upon its own motion or the motion of a party made not later than 20
days after entry of judgment ….”); Continental Cas. Co., 175 Wis. 2d at 535
(“We, therefore, conclude that [§] 805.17(3) … modifies the deadline for filing an

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appeal only when a reconsideration motion has been timely filed after a trial to the
court.”). Thus, pursuant to § 805.17(3), the time for initiating an appeal from the
September 16 judgment began to run on November 5, 2021, when the motion for
reconsideration was denied. That deadline was then reduced from ninety days to
forty-five days, by operation of WIS. STAT. § 808.04(1), when Steven and Dianne
filed their notice of entry of judgment and order. However, “[t]he measurement of
the forty-five-day time period … begins upon disposal of the motion for
reconsideration as set forth under [§] 805.17(3).” Salzman, 168 Wis. 2d at 531
(footnote omitted). Accordingly, Alice was required to file her notice of appeal by
December 20, 2021, and her filing on December 17, 2021, was therefore timely.

¶23 To the extent Steven and Dianne argue that “under WIS. STAT.
§ 805.17(3), the time for initiating an appeal is tolled only as to the issues that
were raised in the motion for reconsideration,” we disagree. Steven and Dianne
do not provide any legal authority for their position, and we conclude that the
plain language of the statute is not so limited. The statute states that when a
motion for reconsideration under subsec. (3) is denied, the time for initiating an
appeal “from the judgment” commences when the court denies the motion or
enters an order denying the motion. This reference to an appeal “from the
judgment” encompasses the entire judgment, not simply the time to appeal any
issue raised in the motion for reconsideration. In short, the plain language of the
statute does not support Steven and Dianne’s reading, and we conclude that we
have jurisdiction to consider all of the issues Alice raises on appeal.

II. Standard of Review

¶24 Addressing the merits of Alice’s appeal, Alice makes four
arguments: (1) the circuit court erred by concluding that there was a valid transfer

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of the Farm to Steven and Dianne; (2) the court erred by concluding that Alice did
not prove undue influence; (3) the court erred by concluding that Alice was
competent; and (4) the court erred by failing to include rental income, insurance
premiums, and Dianne’s towing expenses as part of the money judgment.

¶25 On these issues, following a bench trial, the circuit court’s findings
of fact will be affirmed unless they are clearly erroneous. WIS. STAT. § 805.17(2)
(“Findings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the [circuit] court to judge the credibility of the
witnesses.”). We further note that

[w]hen a [circuit] court acts as the finder of fact, we will
sustain its findings unless they are against the great weight
and clear preponderance of the evidence. When more than
one reasonable inference can be drawn from the evidence,
this court is obliged to support the findings made by the
[circuit] court.

Herlitzke v. Herlitzke, 102 Wis. 2d 490, 494, 307 N.W.2d 307 (Ct. App. 1981);
Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249-50, 274 N.W.2d 647
(1979). We will search the record for evidence to support the findings that the
circuit court made, not for findings that the court could have made but did not
make. Becker v. Zoschke, 76 Wis. 2d 336, 347, 251 N.W.2d 431 (1977). It is for
the circuit court, not this court, to resolve conflicts in the testimony. See Fuller v.
Riedel, 159 Wis. 2d 323, 332, 464 N.W.2d 97 (Ct. App. 1990); see also Cogswell,
87 Wis. 2d at 250 (“In addition, when the trial judge acts as the finder of fact, and
where there is conflicting testimony, the trial judge is the ultimate arbiter of the
credibility of the witnesses.”).

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III. Violation of Trust Terms

¶26 Alice first argues that the transfer of the Farm was not valid because
the trustee’s deed violated the terms of the trust. In her motion for reconsideration
and on appeal,7 Alice argues that the trust language in Article IV.B. clearly
requires that in order to withdraw assets from the trust, the “[w]ithdrawals shall be
made by a writing signed by the surviving spouse or his or her agent that
specifically refers to this paragraph and that is delivered to the trustee during the
surviving spouse’s lifetime, either in person or by registered or certified mail.”
While the trustee’s deed was in writing and signed by Alice, it is undisputed that
the document did not reference Article IV.B. of the trust.

¶27 In response, Steven and Dianne argue that Alice both waived and
forfeited8 her right to assert this ground of noncompliance with the express terms
of the trust. According to Steven and Dianne, this issue was not addressed in
Alice’s complaint, “there was no express or implied consent of the parties to try
[Alice’s] unpled, untechnical argument,” and there was “no request by [Alice] that
the pleadings be amended to conform to the proof presented at trial.” In response,
Alice argues that Steven and Dianne “had actual notice of the issue,” as trial
testimony addressed the issue of the technical requirements necessary for a valid
transfer of assets out of the trust, and there were no objections made to either that

7
We note, for the record, that an appeal cannot be taken from an order denying a motion
for reconsideration that presents the same issues as those determined in the judgment or order
sought to be reconsidered. See Silverton Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661,
665, 422 N.W.2d 154 (Ct. App. 1988). The parties do not argue that there is a Silverton concern
here; therefore, we will address it no further.
8
Waiver and forfeiture are two distinct legal concepts. Waiver is the intentional
relinquishment of a known right, while forfeiture is the failure to make a timely assertion of that
right and develop it. See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.

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testimony or to the issue being brought before the circuit court on reconsideration.
Thus, Alice claims, Steven and Dianne impliedly consented to the court
addressing the trustee’s deed’s lack of compliance with the trust terms. See WIS.
STAT. § 802.09(2); State v. Peterson, 104 Wis. 2d 616, 634, 312 N.W.2d 784
(1981).

¶28 We will assume, without deciding, that Alice did not forfeit the issue
of technical compliance with the express terms of the trust.9 The circuit court

9
Alice also argues that the circuit court failed to determine in which trust the Farm was
located. After Robert’s death, the terms of the original trust required the trustee to “divide the
trust estate … and distribute it as principal into two new separate trusts, designated the ‘family
trust’ and the ‘survivor’s trust.’” Alice asserts that the court did not determine whether the Farm
was in the family trust—which did not permit the gift of trust assets to third parties—or the
survivor’s trust—which allowed for such distribution. Alice contends that because the court
failed to determine how the trust assets were segregated upon Robert’s death and, by extension,
never determined whether the Farm was in the survivor’s trust or the family trust, the issue of
whether her gift of the Farm to Steven and Dianne violated the trust provisions has not yet been
litigated, and this issue should be remanded to the court for determination. The evidence shows
that upon Robert’s death, Alice was the sole trustee of the original trust. Thus, according to the
trust provisions, Alice was supposed to create the survivor’s and family trusts. There is no
evidence in the record whether or not she created the separate trusts.

Our review of the record on appeal suggests that Alice did not address this question
before the circuit court. In fact, Alice’s motion for reconsideration, which specifically argued
that the trustee’s deed did not comply with the terms of Article IV.B.—found under the
provisions pertaining only to the survivor’s trust—did not assert that the court failed to determine
in which trust the Farm was located, nor did her motion request that the court do so. See Bishop
v. City of Burlington, 2001 WI App 154, ¶8, 246 Wis. 2d 879, 631 N.W.2d 656 (“A litigant must
raise an issue with sufficient prominence such that the [circuit] court understands that it is being
called upon to make a ruling.”). Instead, Alice’s reconsideration motion and her arguments on
appeal appear to assume that the provision pertaining to the survivor’s trust applies, meaning that
she assumed that the Farm was located in the survivor’s trust. In fact, Alice’s entire claim that
the transfer of the Farm was not valid because the trustee’s deed violated the terms of the trust
rests on the assumption that Article IV.B. applies. Further, Alice’s argument that we should
remand for the circuit court’s determination is overall conclusory and undeveloped, see State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992), and Steven and Dianne failed
to address this issue in their response. Given that we generally do not consider issues raised for
the first time on appeal, see Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23
(1998), and that it appears that the parties litigated the matter assuming that the Farm was located
in the survivor’s trust, we will do the same.

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determined that Article IV.B. of the trust did not require that Alice refer to
Article IV.B. when distributing assets to a third party because she was both the
surviving spouse and the trustee; thus, Alice’s “failure to comply with
Article IV.B. is, at most, a harmless, technical violation.” We agree.

¶29 Here, Alice was the surviving spouse, the beneficiary, and the trustee
under the trust. Thus, in essence, Alice is arguing that by failing to include a
reference to Article IV.B. in the trustee’s deed, Alice failed to give herself notice
of the transfer. Alice was not required to give herself notice of an action she
herself was taking. Further, we are unpersuaded by Alice’s argument that the
circuit court should have considered the “behind-the-scenes actions of Steven and
Dianne with Attorney Earley in understanding the significance of including
reference to Article IV.B. and why the violation was neither ‘harmless’ nor
‘technical.’” Apart from conclusory statements, Alice fails to assert or develop an
argument as to how or why the inclusion of a reference to Article IV.B. in the
trustee’s deed would have somehow revealed the “behind-the-scenes actions of
Steven and Dianne” or “showed Alice knew the extent of what she was signing.”

IV. Undue Influence

¶30 Alice next argues that the circuit court erred by concluding that she
did not prove the existence of undue influence. There are two methods by which
Alice could prove undue influence: the four-element test and the two-element test.
See Hoeft v. Friedli, 164 Wis. 2d 178, 184-85, 473 N.W.2d 604 (Ct. App. 1991);
see also First Nat’l Bank of Appleton v. Nennig, 92 Wis. 2d 518, 536, 285
N.W.2d 614 (1979) (“Undue influence in the execution of an inter vivos
conveyance is proved in the same way that undue influence is proved in the
execution of a will.”). The four-element test requires an objector to

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prove: “(1) susceptibility to undue influence, (2) opportunity to influence,
(3) disposition to influence, and (4) coveted result.” Hoeft, 164 Wis. 2d at 185.
“When the objector has established three of the four elements by clear and
convincing evidence, only slight evidence of the fourth is required.” Id.

¶31 The two-element test requires an objector to prove: “(1) a
confidential or a fiduciary relationship between the [grantor] and the favored
beneficiary, and (2) suspicious circumstances surrounding” the transfer of
property. See id. at 184. “When the objector proves the existence of both
elements by clear and satisfactory evidence, a rebuttable presumption of undue
influence is raised.” Rahr v. East Wis. Tr. Co., 88 Wis. 2d 199, 219, 277 N.W.2d
143 (1979) (footnote omitted). The objector may rely on either or both tests to
attempt to prove undue influence, and Alice appears to rely upon both tests here.10
See Hoeft, 164 Wis. 2d at 185.

¶32 We agree with the circuit court that Alice failed to meet her burden
to prove that she signed the trustee’s deed as a result of undue influence. The
court concluded that “the evidence show[ed] that Alice made an inter vivos gift
10
Although Alice mentions the two-part test, her arguments on this point are conclusory
and overall undeveloped. Steven’s role as attorney-in-fact for Alice appears to satisfy the first
element of the test that there be a “confidential or a fiduciary relationship.” See Hoeft v. Friedli,
164 Wis. 2d 178, 184, 473 N.W.2d 604 (Ct. App. 1991). On the second element, Alice identifies
“suspicious circumstances” regarding her hospitalization while Steven and Dianne coordinated
the trustee’s deed through Attorney Earley. See id. For example, Alice claims that she was “kept
out of the loop with Attorney Earley”; that it was suspicious that Steven insisted on taking a
photograph of the signing of the trustee’s deed; and that there was “vastly conflicting testimony
from Attorney Earley, Steven, and Dianne regarding the signing.” The circuit court specifically
found Steven’s and Dianne’s testimony regarding the August 24, 2015 meeting to be credible,
noting that Earley “did not have a present recollection about most of the meeting.” Further, Alice
also appears to argue that Dianne contacting Earley was somehow improper or suspicious
because Earley was Dianne’s high school classmate. However, Dianne testified that she
contacted Earley on a recommendation from Alice’s accountant. Further, both Dianne and Earley
testified that they had not been friends in high school or had significant contact after high school.

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that was consistent with the objectives of her existing estate plan to ultimately
transfer the [F]arm to Steven and Dianne.” While Steven and Dianne may have
had the opportunity to influence Alice, the clear and convincing evidence does not
establish that Alice was “unusually receptive to the suggestions of others,” see
Johnson v. Merta, 95 Wis. 2d 141, 156-57, 289 N.W.2d 813 (1980), or that
Steven and Dianne had “more than just a desire to obtain a share of [Alice’s
property]” but instead had “a willingness to do something wrong or unfair,”
Onderdonk v. Keepman, 81 Wis. 2d 687, 700, 260 N.W.2d 803 (1978).

¶33 In support of her position that she was susceptible to undue
influence, Alice cites her hospital stay in August 2015 and the fact that “Alice’s
trial testimony revealed she did not remember much, if anything, that happened
from August 9, 2015[,] through August 24, 2015.” As noted above, however,
there was contradictory evidence presented regarding Alice’s mental status during
the course of her hospital stay, and the circuit court found that Alice’s medical
records showed that she had recovered from any temporary mental incapacity
during her hospitalization. Further, given that Alice was found to be medically
incapacitated in April 2018, her inability to remember events that occurred in 2015
at the trial in 2021 provides little support for her position. At the same time,
because Alice was not found medically incapacitated until 2018, her subsequent
incapacitation does not support a finding that she was “unusually receptive to the
suggestions of others” in 2015.

¶34 Further, we agree with Steven and Dianne that Alice’s signing of the
trustee’s deed was not an unnatural or a coveted result. A coveted result “has been
said to signify more than simply a result favorable to the person who is alleged to
have exerted undue influence.” Merta, 95 Wis. 2d at 159. “This element goes to
the naturalness or expectedness of the conveyance.” Onderdonk, 81 Wis. 2d at

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700. “Even a [conveyance] which evidences a drastic change in attitude can be
sustained if logical reasons are shown for that change.” Odegard v. Birkeland, 85
Wis. 2d 126, 138, 270 N.W.2d 386 (1978).

¶35 The only difference between Alice and Robert’s original trust
documents and the trustee’s deed conveying the property was that the transfer
occurred sooner—within Alice’s lifetime—rather than at her death.11 While this
result is, as Alice described it, “ahead of what Robert and Alice intended” at the
time they created the trust, and while Alice is denied the benefit of owning the
property during this period, Alice also receives the benefit of protecting the
property from a medical or nursing care lien. While this protection additionally
inured to the benefit of Steven and Dianne, it also served Alice’s interest in
keeping the Farm in the family. Steven and Dianne did not obtain anything other
than what was expected, as they would have received the Farm under the existing
estate plan upon Alice’s death. Thus, their actions were not clearly “wrong or
unfair.” See Onderdonk, 81 Wis. 2d at 700.

¶36 To the extent the trustee’s deed could be called a “drastic change in
attitude,” testimony revealed that Alice was motivated by medical assistance
planning. See Odegard, 85 Wis. 2d at 138. Dianne testified that she had
discussions with Alice regarding the Farm, and Alice expressed her desire to

11
Alice argues, however, that “receipt of the Farm is now unjust to other beneficiaries”
because under Article V.B. of the trust, if Dianne should predecease Alice, then the Farm was to
be split amongst Steven’s and John’s children. Alice claims that “Steven and Dianne used the
trustee’s deed to circumvent Robert and Alice’s intent and destroy the objects of Robert and
Alice’s estate plan by cutting Steven[’s] and John’s kids out and transferring the Farm many
years in advance.” We disagree. The clear intent of Robert and Alice was that Steven and
Dianne would receive the Farm, and it was only upon the condition that Dianne predeceased the
distribution of the trust that the children of Steven and John would receive anything.

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transfer the property to protect it in the future due to her increasing medical issues.
Further, Attorney O’Neill testified that Alice was considering medical assistance
planning in 2012.

¶37 The circuit court believed that Alice’s transfer of the Farm to Steven
and Dianne was something that she wanted to do at the time to avoid losing the
Farm should something happen with her health in the future. While Alice
highlights the evidence that is most favorable to her on appeal, her arguments
merely ask us to reweigh the evidence, which we are unable to do under our
standard of review. The court’s decision was properly supported by evidence in
the record that was found by the court to be credible. We therefore agree with the
court and conclude that Alice failed to meet her burden to prove that she signed
the trustee’s deed as a result of undue influence.

V. Competency

¶38 Alice also argues that the circuit court erred by concluding that Alice
was competent when she signed the trustee’s deed on August 24, 2015. She
claims that the trustee’s deed is void because she was not competent to sign it at
that time. “Wisconsin has long recognized a cause of action to rescind a contract
or conveyance based upon the lack of mental competency at the time of the
transaction.” Hauer v. Union State Bank of Wautoma, 192 Wis. 2d 576, 588,
532 N.W.2d 456 (Ct. App. 1995). However, “[t]he law presumes competency
rather than incompetency; it will presume that every person is fully competent
until satisfactory proof to the contrary is presented.” Nennig, 92 Wis. 2d at
529-30. The party seeking to void the contract or conveyance bears the burden to
prove incompetency. Hauer, 192 Wis. 2d at 589. “The test of competency is, did
the person involved have sufficient mental ability to know what he [or she] was

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No. 2021AP2180

doing and the nature of the act done.” Nennig, 92 Wis. 2d at 530. “Almost any
conduct may be relevant, as may lay opinions, expert opinions and prior and
subsequent adjudications of incompetency.” Hauer, 192 Wis. 2d at 590.

¶39 We conclude that the circuit court properly determined, based on
ample support in the record, that Alice failed to meet her burden to establish that
she was incompetent when she signed the trustee’s deed. Specifically, the court
found:

None of the medical records near the time she executed the
deed showed that she was incompetent. Although Alice
had moments of confusion, the records showed no history
of neurological impairments or diagnoses. There was no
sign that Alice’s healthcare directive was activated or that
Alice was unable to make her own medical decisions.
Significantly, in the treatment note from the August 24,
2015 visit, her provider reported that Alice was “alert and
oriented,” was “cooperative,” and showed signs of “normal
judgement.” Immediately after this visit, Alice went to
Attorney Earley’s office and signed the deed.

The court further found that after the August 24, 2015 meeting, “Earley’s office
received a check signed by Alice for payment of legal services in connection with
the preparation of the trustee’s deed.”

¶40 The circuit court unequivocally determined that Alice was
competent when she executed the trustee’s deed. The court’s finding is supported
by evidence in her medical records that any confusion or mental impairment that
Alice experienced upon entering the hospital had resolved by the end of her

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hospital stay.12 On the day she signed the trustee’s deed, her doctor reported that
Alice had an appropriate mental state. Further, Earley testified that he made an
assessment of Alice that day, and he determined that Alice “knew that she was
signing a deed,” that she “wanted to sign a deed,” and that he had no “impression”
when he met with Alice that “she lacked capacity to sign a deed.”

¶41 On appeal, Alice argues that the record is clear that she “was dealing
with lingering mental confusion throughout the month of August 2015.” Again,
Alice’s arguments focus on testimony that was favorable to her, but the circuit
court’s findings on this question were sufficiently supported by evidence in the
record. Alice also argues that her incompetence was demonstrated by her need for
assistance with her daily living. The record revealed, however, that she was living
alone in August 2015 and that Steven and Dianne assisted her with only general
errands and tasks. Alice further claims that it is clear that she did not know that
she was signing the trustee’s deed because she believed that she still owned the
Farm, and she continued to make the insurance premium payments. Steven
testified, however, that Alice stated to him that while she was living in the house,
she wanted to pay the insurance bill. Alice also claims that she never spoke to
Earley about the trustee’s deed, read the trustee’s deed, reviewed the trustee’s deed

12
Despite the evidence to the contrary relied upon by the circuit court, Alice disagrees
that she improved during her time in the hospital. She points out that at trial, Ives—who is
Alice’s granddaughter, John’s daughter, and who is also a registered nurse—testified that she
visited Alice at the hospital for approximately fifteen to twenty minutes on August 16, 2015. Ives
reported that Alice’s “speech was nonsensical, very disorganized. She wasn’t sure where she
[was], why she was there, really who I was. She kept repeating herself often and was very
confused.” Further, John testified that he called Alice on August 18, 2015, and he “spent a long
time trying to convince her I wasn’t her dead husband,” Robert. Additionally, Alice claims that a
discharge summary completed on August 19, 2015, concluded that Alice still had a “[g]uarded”
prognosis; however, the “admission diagnosis” on that document listed “[w]eakness” as the main
concern, not anything pertaining to Alice’s mental status. (Formatting altered.) On that point,
Dianne testified that “guarded” was “in terms of the fall factor.”

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No. 2021AP2180

with counsel, or considered the trustee’s deed with the rest of her existing estate
plan. As noted above, however, Earley testified that his assessment, when he met
Alice on August 24, 2015, was that she “wanted to sign a deed.” Dianne also
testified that Alice told her that she wanted to sign the deed to protect the Farm
from being taken to pay for possible future nursing home expenses.13

¶42 In general, Alice claims that the circuit court should not have
considered testimony contrary to her position. In particular, Alice argues that
Earley’s “alleged competence assessment on August 24, 2015[,] should have been
[given] zero weight by the [circuit] court” because he did not have sufficient time
with Alice to evaluate her properly. Alice also argues that the court’s decision to
find Steven or Dianne credible was erroneous “considering the fact the [circuit]
court found Steven and Dianne were thieves.” These credibility determinations,
however, were within the province of the circuit court. See WIS. STAT.
§ 805.17(2). The court weighed the credibility of the witnesses in its findings and
upheld the validity of the trustee’s deed, finding Alice competent at the time she
signed it. Given both the presumption that a person is competent and the evidence
presented at trial, we see no error.

13
Alice notes in her briefing that “contrary to the [circuit] court’s finding that the
[t]rustee’s [d]eed was made to shield against nursing home expenses, the [r]ecord showed that
there was no real effort taken to protect the Farm from nursing home expenses” and that “Steven
admitted he never even looked into nursing home care until roughly three years after the
transfer.” However, the timing of when either Steven or Dianne actually began investigating
nursing home care for Alice appears to be irrelevant, given that trial testimony revealed that there
was a “federal lookback period” for transfers “of property without consideration within five years
of making an application for medical assistance.” Thus, the point of “medical assistance
planning” appears to be that the transfer should take place well before Alice might have needed
nursing home care.

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VI. Money Judgment

¶43 The circuit court granted Alice a money judgment in the amount of
$34,049.69. It found that Steven breached his duty as attorney-in-fact and that
Steven and Dianne’s actions contributed to a conversion of Alice’s money. On
appeal, Alice challenges the court’s award, arguing that “there are a number of
monies the [circuit] court did not award as part of its judgment for Alice that were
converted by Steven and Dianne.” In particular, Alice points to rental income
received from the Farm after August 24, 2015. As we concluded above, however,
the court properly determined that the trustee’s deed was valid and that Steven and
Dianne owned the Farm after the date it was signed. Therefore, Alice is not
entitled to rental income subsequent to that date, and the court properly refused to
award those funds in the judgment against Steven and Dianne.

¶44 Alice next argues that she was “made to pay [insurance] premiums
on the Farm despite no longer owning the Farm.” In particular, she argues that she
paid $1,088 on October 12, 2015, and $1,191 on September 29, 2016, for the
premiums. It is true that the circuit court did not award those amounts to be
returned to Alice, but it did order that $15,436.69 in insurance proceeds be
returned to Alice from a “hail damage” claim to the Farm. The court explained
that

[a]lthough Alice did not own the Farm when the hail
damage occurred, she was the policyholder and she paid the
premiums. As such, she was rightfully entitled to insurance
proceeds because insurance is a contract between the
insurer and the insured. Steven and Dianne have no
interest in the insurance contract or the proceeds from the
claim.

Thus, had the court also awarded Alice’s payments for the insurance premiums
returned to her, she would have received a windfall. The court properly

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No. 2021AP2180

determined that Alice was not entitled to both the insurance proceeds and the
insurance premiums, as her payment of the insurance premiums entitled her to the
insurance proceeds. Apart from arguing that this determination “was erroneous,”
Alice cites no legal authority in support of her position.

¶45 Finally, Alice argues that the circuit court should have awarded her
the funds that Dianne used to tow Alice’s car. Dianne testified that she got into an
accident with Alice’s car and paid for the towing—in the amount of $414.09—
with Alice’s money from a joint account. Alice argues that “Dianne never should
have had access to the funds in the first place” because she was not the
attorney-in-fact and that “there was no evidence suggesting Alice consented.” We
disagree.

¶46 According to Dianne’s trial testimony, Alice “offered to pay” the
cost to tow the vehicle. In contrast, it does not appear that Alice was asked at trial
about whether she gave Dianne permission to use her funds to pay to tow Alice’s
vehicle; thus, there was no testimony contradicting Dianne’s explanation. Given
Dianne’s testimony, the circuit court’s decision not to include the towing costs in
the final money judgment was not clearly erroneous.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

25